The ‘75%’ versus ‘66.6%’ conundrum on the EWC constitutional amendment bill
In calling last month for public comment on the Draft Constitution Eighteenth Amendment Bill (the Bill) by 31 January, the Ad Hoc Committee proposed that the draft measure should in time be adopted under Section 74(2) of the Constitution.
Section 74(2) deals with amendments to the Bill of Rights. It requires that any such amendment be supported by two-thirds (66.6%) of the members of the National Assembly, along with six provinces in the National Council of Provinces.
But some provisions in the Bill of Rights are so intrinsic to the ‘rule of law’ – ‘the supremacy’ of which is guaranteed in the Constitution’s founding provisions in Section 1 – that these clauses can be amended only with the same majority as is needed for changing Section 1 itself. That majority, according to Section 74(1) of the Constitution, is ‘at least 75%’ of the members of the Assembly.
Various legal experts have put forward pertinent arguments as to why a 75% majority is in fact required for the Bill, which has two particularly contentious and far-reaching provisions.
First, the Bill empowers the courts to decide that ‘nil’ compensation may be provided ‘where land and any improvements thereon are expropriated for purposes of land reform’.
Second, the Bill empowers Parliament to enact any number of subsequent statutes – all of which may be passed by a simple 51% majority – setting out ‘specific circumstances where a court may determine that the amount of compensation is nil’.
Adv Paul Hoffman SC, director of Accountability Now, explains why these proposed provisions in the Bill undermine the supremacy of the rule of law and so require a 75% majority for their adoption.
As Adv Hoffman points out, the World Justice Project has developed a global Rule of Law Index to measure the success of different countries in upholding the rule of law. The Project has also developed a widely accepted definition of the rule of law, which it uses as the foundation for its assessments.
According to the World Justice Project, the rule of law requires that ‘laws are clear, publicised, stable and just; are applied evenly; and protect fundamental rights, including the security of persons and property’.
Security of property rights is thus intrinsic to the rule of law. But property rights will be greatly curtailed by the Bill’s expropriation without compensation (EWC) provisions – which means that the supremacy of the rule of law will be diminished too. Hence, if the Bill is to pass constitutional muster, it must be adopted by a 75% majority in the House of Assembly, not the two-thirds majority generally required for amendments to the Bill of Rights.
Writes Adv Hoffman: ‘When any contemplated amendment affects the rule of law, then the procedure set out in Section 74(1) is applicable, whether or not the proposed amendment is to a right in Chapter Two’ (the Bill of Rights).
The blank cheque being given to Parliament to decide, by 51% majority, on the ‘specific circumstances’ in which EWC will apply, further contradicts the rule of law. Since property rights are intrinsic to the rule of law, changing them requires a 75% majority in the National Assembly. Instead, the Bill proposes that a mere 51% majority should suffice. This provision so erodes the rule of law that it also requires a 75% majority.
Concludes Adv Hoffman: ‘That [the Bill] affects the rule of law is beyond question. In essence, the current protection of property rights (part of the rule of law)…[is] watered down, [while] Parliament is being given untrammelled power to make the rules of the [EWC] game.’ The Ad Hoc Committee’s proposal that the Bill be adopted by a two-thirds majority is thus ‘conduct inconsistent with the Constitution’ and is itself invalid.
Gary Moore, a lawyer and senior researcher for the Free Market Foundation, agrees, saying: ‘A constitutional amendment to allow EWC would not be a mere amendment of the property clause. It would limit other fundamental rights and the rule of law and, therefore, its adoption would require a 75% majority.’
To take but one example, says Mr Moore, the Bill of Rights guarantees everyone the ‘equal protection’ of the law, but EWC will ‘operate unequally’. Owners who have paid off the mortgages on their land and homes (the ‘improvements’ envisaged by the Bill) will bear the full brunt of uncompensated expropriations. Those who have paid only a small part of their mortgages will lose far less to EWC (though many will still struggle to pay off outstanding mortgage debt).
Unequal operation may also arise as regards customary and other land. In July 2018, President Cyril Ramaphosa was quick to assure Zulu monarch King Goodwill Zwelithini that land held by the Ingonyama Trust would not be subject to EWC. ‘The 13% of land that was under traditional leaders’ would not be affected, said Mr Ramaphosa, as EWC would instead be targeted at ‘the 87% of the land’.
Also important is the ‘proportionality’ principle in the Bill of Rights. This states that guaranteed rights may be limited by laws only to the extent that the limitation is ‘reasonable’ and ‘justifiable’, taking into account ‘all relevant factors’. One such factor is the availability of ‘less restrictive’ means to achieve the relevant purpose – in this case, the land reform objective.
According to Professor Björn Hoops of the University of Groningen (writing last year in the South African Law Journal), ‘proportionality arguably [also] forms part of the rule of law’. This is because ‘South African law received the concept of “proportionality” from German law, which considers proportionality an integral part of the rule of law’. He adds: ‘A constitutional amendment can therefore not circumvent proportionality tests without restricting the rule of law itself’, while ‘such an amendment will require a three-quarter majority in the National Assembly’.
Particularly relevant to proportionality in the land reform context is the November 2017 report of the High Level Panel of Parliament. This comprehensive analysis concluded that land reform can best be achieved, not via EWC, but rather by countering the inefficiency, corruption, elite capture, and disdain for beneficiary needs that currently bedevil it. The Panel’s assessment thus makes it clear that measures ‘less restrictive’ than EWC are readily available to turn land reform from failure to success.
The proportionality principle, if properly applied by the courts, would generally rule out the use of EWC for land reform purposes. At the same time, however, any constitutional amendment to exclude the proportionality tests would need a 75% majority in the National Assembly.
The Ad Hoc Committee claims that its EWC Bill needs only a two-thirds majority – and various legal experts might agree. But the reasons cited here as to why a 75% majority is required are cogent and compelling. They should not lightly be dismissed if Parliament is to fulfil its obligation to uphold the Constitution at all times.
Behind the committee’s assumption that two-thirds will do lies a clear political calculation. The ANC and the EFF hold some 68% of the seats in the National Assembly and can marshal a 66.6% majority. A 75% majority, however, lies well beyond their grasp.
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